1. Introduction
The period when Roman citizens were entitled to refer to civis romanus sum was long ago; however, today the similar phrase can be used for Union citizens, in the version of civis europeus sum. Civis romanus sum implied all the rights (and duties) associated with the status of a Roman citizen. The phrase was used as some sort of talisman that protected Roman citizens. It was often used and quoted throughout history and ‘adapted’ for other citizens.
The EU has a lot of symbols that signify unification in several areas. It has its flag, anthem and some other unifying symbols, passports, car plates and the euro, which are used throughout the EU, with some exceptions. Furthermore, we also now have Union citizenship, which at this point of the development of this concept, and despite the rights it grants to Union citizens, still differs from national citizenship in certain characteristics.
The concept of Union citizenship has developed slowly and, in my opinion, the development is still ongoing. Advocate General Jacobs, in the year 1992, in his opinion in the Kostantinidis case (Case 168/91) has already prophetically and almost apodictically indicated the development of this concept (the essence of the case concerns the question of the proper method for transcribing the name of a Greek national, who requested the transcription of his name, which was not in accordance with ISO standards). By defining civis europeus sum, Jacobs has indicated the need for the development of Union citizenship. According to his opinion, every Union citizen should have the right to refer to this status to prevent the breach of his fundamental rights. The CJEU later followed his reasoning with case law, and also EU legislation has developed in this direction. Today, the Treaty on the Functioning of the EU (TFEU) contains provisions defining Union citizenship.
Like Europe, which was initially established as an economic community and later evolved increasingly into the community of citizens (von Europa der Wirtschaft zu einem Europa der Bürger),1 Union citizenship also took a similar path. Hence, citizenship has developed from the initial ‘European’ with mostly economic rights, such as free movement of workers (Marktbürger, Market Citizen, citoyen du marché), to ‘classical’ European citizen, demanding the protection of fundamental rights (Unionsbürger, Union citizen, citoyen de l’Union), although this status is not yet the same as the status of a citizen of a Member State. In the beginning, the emphasis was on economic rights, whereas development has gone from free movement of workers towards the right to move and reside freely in the territory of the Member States, in accordance with the provisions of the TFEU. Thus, the rights of Union citizenship have originally been limited only to workers or linked to other economic rights (e.g. freedom of establishment), and this has later been expanded to other persons (e.g. students, unemployed). Today, along with those rights, Union citizens also enjoy several political rights (e.g. the right to vote for and stand as a candidate in municipal and the European Parliament elections, the right to petition the European Parliament and to complain to the European Ombudsman), as well as some personal rights, such as the right to write a name in a certain way, the right to family life and others.
2. Legal Framework of Union Citizenship
2.1. The Treaties and the EU Charter of Fundamental Rights
The provisions on Union citizenship were introduced into the primary law with the Maastricht Treaty in 1992. The Treaty, today the TFEU, contains the general provision and the definition of Union citizenship, together with the provisions governing some rights associated with this concept. Duties are only mentioned, however, they are not concretised.
The first paragraph of Article 20 TFEU provides that by this treaty the ‘Union citizenship is established’. Union citizens are all persons holding the nationality of a Member State. In addition, the second sentence of the second paragraph of Article 20 TFEU is important, providing that the citizenship of the Union complements and does not replace national citizenship. With respect to the acquisition and loss of citizenship, the Union citizenship is additional. It can be acquired only by a person who is a national of a Member State of the EU. In addition, the loss of the Union citizenship is not possible without the loss of citizenship of a Member State. On the other hand, the conditions for acquiring citizenship in the individual Member States differ and, consequently, also the conditions for acquiring Union citizenship differ. Therefore, some legal academics call for the harmonization of laws with respect to citizenship in the individual Member States.2
The second paragraph of Article 20 TFEU provides that Union citizens are subject to the rights and obligations under the Treaties.
A further provision is contained in Article 21 TFEU, which states that every citizen has the ‘right to move and reside freely’ within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties.
Further provisions in Articles 22 to 25 TFEU govern the right to vote and to stand as a candidate at elections to the European Parliament and at municipal elections in the Member State of residence, the right to protection by the diplomatic or consular authorities of any Member State, the right to petition the European Parliament, the right to apply to the Ombudsman and the right to write to any institution or body of EU in one of the official languages of the EU. It is noteworthy that there are 24 official languages in the EU today.
Article 18 TFEU is also important in this context, prohibiting any discrimination on grounds of nationality within the scope of application of the Treaties.
An additional important document is the EU Charter of Fundamental Rights (the Charter), which was proclaimed in 2000 and has become legally binding on the EU with the entry into force of the Treaty of Lisbon in December 2009. The Charter forms part of the primary EU law and introduces some important aforementioned rights for Union citizens. Of special importance for Union citizens are rights governed in Articles 39–45, for example the right to vote and to stand as a candidate in elections to the European Parliament and at the municipal elections, the right of access to documents, the right to petition, and others.
2.2. European Regulations and Directives
The Union citizenship is, directly or indirectly, regulated by many regulations and directives, which are often in the form of implementing acts defining specific areas covered by the Treaties, such as concretization of the provisions on the right to move and reside freely in the EU. We will mention only the most important one for Union citizens, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Directive 2004/38).
In accordance with Directive 2004/38 every Union citizen has a right to move and reside freely within the territory of the Member States. The fundamental and personal right of residence in another Member State is conferred directly on Union citizens by the Treaty and is not dependent upon their having fulfilled administrative procedures; Union citizens need only a valid identification document for these purposes. For periods of residence of longer than three months, Directive 2004/38 lays down the conditions to be fulfilled and Member States have the possibility to concretise them, for example they have the possibility to require Union citizens to register with the competent authorities in the place of residence. Directive 2004/38 also enables other conditions to be laid down in the Member States’ legislation.
3. Case Law of the Court of Justice of the EU Related to Union Citizenship
The case law on Union citizenship is extensive and affects different areas. It encompasses examples of the right to obtain a scholarship or assistance for the unemployed or other social rights in other Member State and the questions linked to tax relief and the right to write a name in a certain way in other Member States. Recently, the CJEU has adjudicated on a series of cases related to the right to family life, especially as regards third country nationals who are family members of Union citizens and their rights (e.g. judgments in cases Ruiz Zambrano (C-34/09), Dereci (C-256/11), Iida (C-40/11)), introducing the ‘genuine enjoyment test’. However, this article will not elaborate on those cases due to the space limitations.
3.1. Social Rights
The CJEU played an important role in granting Union citizens access to social benefits in another Member States, with particular significance for students. In the case Grzelcyzk (C-184/99), in which the CJEU issued its judgement in 2001, the preliminary question was referred by the Belgian labour court, Tribunal du travail de Nivelles. This case concerns a French national who began a course of university studies in Belgium. During the first years of his studies, he defrayed his own costs of maintenance, accommodation and studies by taking on various minor jobs while studying. Afterwards he applied for the minimum subsistence allowance, i.e. payment of the minimex. Belgian authorities did not grant him the minimex, as he is neither a Belgian national nor worker in the sense of the Regulation 1612/68 on freedom of movement for workers within the Community (Regulation 1612/68).
In the preliminary reference procedure under Article 267 TFEU the CJEU held that such discrimination is in principle prohibited by the Treaty. The CJEU has emphasised that Articles 18 and 20 TFEU preclude entitlement to a non-contributory social benefit, such as the minimex, from being made conditional, in the case of nationals of Member States other than the host State where they are legally resident, on their status of workers and thus falling within the scope of Regulation 1612/68 when no such condition applies to Belgian nationals. Further, the CJEU has emphasised that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality’, subject to such exceptions as are expressly provided for. This characteristic of the Union citizenship has later been referred to several times in the CJEU’s case law (e.g. judgments in the cases Garcia Avello (C-148/02), Bidar (C-209/03), Schwarz (C-76/05)).
In the case Trojani (C-456/02) the CJEU also delivered the decision regarding the social benefits in the preliminary reference procedure concerning the questions referred by the labour court (Tribunal du travail) in Brussels, Belgium.
Mr Trojani was a French national legally residing in Belgium and performing various small jobs there for about 30 hours a week as part of a personal socio-occupational reintegration programme. As he had no resources, he applied for the ‘minimex’, the Belgian minimum income guarantee. Belgian authorities denied the benefit on the grounds that Trojani was neither Belgian nor a worker under EU law. They granted him the right to receive provisional social assistance, stayed the proceedings and referred the questions for preliminary ruling to the CJEU in Luxembourg.
The CJEU held that it must be recalled that the right to reside in the territory of the Member States is conferred directly on every citizen of the Union by Article 20 TFEU. Thus, Mr Trojani has the right to rely on that provision of the Treaty simply as a citizen of the Union. It further held that as a Union citizen lawfully residing in Belgium, Trojani fell within the scope of the Treaties and could benefit from the fundamental principle of non-discrimination governed by Article 18 TFEU, even if he is found to be economically inactive. Once it is ascertained that a person in a situation such as that of Trojani is in possession of a residence permit, he may rely on Article 18 TFEU in order to be granted a social assistance benefit such as the minimex. Therefore, this case has important contributions for the social welfare of Union citizens residing in another Member State, as it follows from the ruling of the CJEU that even economically inactive Union citizens lawfully residing in another Member State have a right to access to social benefits under the same conditions as the Member State’s own nationals.
3.2. Students
The CJEU has also made important contribution in adjudicating cases related to Union citizenship and students. The CJEU’s decisions on these issues are moving in two directions. First, according to the first line of decisions, Member States are prohibited to restrict students to study abroad (e.g. the cases of Morgan and Bucher (C-11/06, C-12/06), and Laurence Prinz (C-523/11)). Second, pursuant to the second line of the CJEU’s decisions, Member States are not allowed to restrict access to university studies at domestic universities to students from other Member States in a discriminatory manner (e.g. case Commission/Austria (C-147/03)). Important student-related cases are also those concerning social rights, as for example in the abovementioned case Grzelcyzk (C-184/99).
In the following, the decision on the joined cases Morgan (C-11/06) and Bucher (C-12/06) will be presented. In these joined cases the CJEU delivered judgement in the preliminary reference procedure concerning the questions posed by one of the German administrative courts.
Ms Morgan, a German national, studied applied genetics in the United Kingdom. She applied to the Bezirksregierung Köln for an education or training grant for her studies in the UK, claiming in particular that courses in genetics were not offered in Germany. Her application was rejected on the ground that Ms Morgan did not meet the conditions laid down by the German legislation for an education or training grant for studies at an education or training establishment outside Germany, under which courses of study attended outside Germany have to represent the continuation of education or training pursued for at least one year in Germany. The administrative appeal lodged by Ms Morgan against that rejection having itself been dismissed, the dispute was brought before the referring court, which has referred questions for the preliminary ruling to the CJEU.
Ms Bucher, a German national, was studying ergotherapy in the Netherlands, in close proximity to the German border. She had registered her principal residence in Düren (Germany), and commuted to Heerlen for study purposes. She applied to the Landrat des Kreises Düren for an education or training grant for her studies in the Netherlands. That application was rejected on the ground that Ms Bucher had established her residence in a border area for the sole purpose of pursuing her professional education or training. The administrative appeal lodged by Ms Bucher against that rejection having itself been dismissed, the dispute was brought before the referring court, which is the same court as the one before which Ms Morgan brought the dispute.
The CJEU held that Articles 20 and 21 TFEU preclude, in circumstances such as those in the cases before the referring court, a condition in accordance with which, in order to obtain an education or training grant for studies in a Member State other than that of which the students applying for such assistance are nationals, those studies must be a continuation of education or training pursued for at least one year in the students’ Member State of origin. Moreover, Articles 20 and 21 preclude Member States from refusing to award an education or training grant to a national who as a cross-border commuter is pursuing her course of study in a neighbouring Member State, on the grounds that she established her residence in a border area for the sole purpose of pursuing her professional education or training and that that place of abode is not her permanent residence. The German federal law on education and training grants unduly restricted the freedom of movement for Union citizens. The relevant provision was liable to deter Union citizens from making use of their freedom of movement and thus infringed Articles 20 and 21 TFEU.
It follows from this case that the CJEU established that Member States must not deter their own nationals from studying in another Member State. Financial assistance granted to students should not be subject to the condition that university studies are commenced in the Member State of nationality or other similar requirements (e.g. prohibition of moving to the border area, pursuing studies for at least one year in home country, condition of prior residence of three years in the home Member State, etc).
3.3. Tax relief
Union citizenship can also be linked to tax-related issues. Thus, in the case Schwarz (C-76/05) the CJEU delivered its judgment on questions concerning the right to tax relief. The preliminary question for the preliminary reference procedure under article 267 TFEU was referred to the CJEU by the financial court in Cologne, Germany. Moreover, the Commission filed an action against Germany as the German legislation limited the tax relief to costs incurred in certain schools in Germany.
The Schwarzes lived in Germany and have enrolled two of their three children in a school in Scotland for exceptionally gifted children. They have claimed tax relief in respect of school fees paid to the schools attended by their children in Scotland. Their request for tax relief was rejected; therefore, they have brought the dispute before the national court, which referred the questions for preliminary ruling to the CJEU.
The CJEU has primarily found non-compliance with the freedom to provide servicers under Article 56 TFEU. It has found that German legislation is disproportionate, as the same objective could be achieved by less stringent methods, for example by limiting the amount of tax relief to a certain amount.
The CJEU was of an opinion that German legislation also violates the right of free movement of citizens of the Union granted by Article 21 TEU. It has emphasised that the Schwarzes, by enrolling children in an educational establishment situated in another Member State, used their right to free movement. National legislation such as that at issue in the main proceedings introduces a difference in treatment between taxpayers subject to income tax in Germany who have sent their children to a school in Germany, and those who have sent their children to a school established in another Member State and exercised their right to free movement. National legislation, which places at a disadvantage certain of the nationals of the Member State concerned simply because they have exercised their freedom to move and to reside in another Member State, is a restriction on the freedoms conferred by Article 21(1) TFEU on every Union citizen pursuant to established case law. The CJEU thus held that German legislation is not in compliance with the Treaty provisions on Union citizenship.
3.4. Personal Names
The CJEU has delivered several decisions in cases concerning the right to write a name in a certain way, as it is written in the Member State of the origin, or concerning the use of the official personal name in other Member States. These cases are for example cases Kostantinidis (C-168/91), Garcia Avello (C-148/02), Grunkin-Paul (C-353/06), Runevič-Vardyn (C-391/09), etc.
The important judgment was delivered in the case Grunkin-Paul (C-353/06), in which the preliminary question was referred by the German district court from Flensburg (Amtsgericht Flensburg). It is derived from the facts of the case that Mr Grunkin and Ms Paul, two German nationals, had a child in Denmark, Leonhard Matthias, who, in accordance with the Danish rules applicable in relation to civil status, was registered with the double-barrelled surname of the two parents, i.e. Grunkin-Paul. The child was also German but had always lived in Denmark and his surname was entered on his Danish birth certificate. The parents of the child requested that his surname be entered into the family register in Germany. The German authorities refused that request on the ground that the German law does not allow a child to bear a double-barrelled surname composed of the surnames of both the father and the mother.
The parents of the child applied to the court for an order that their son’s surname be recognised as determined and registered in Denmark and to enter him in the family register under the name of Leonhard Matthias Grunkin-Paul. The national court referred the question to the CJEU for a preliminary ruling and the CJEU has held that the right of Union citizens to move and reside freely within the territory of the Member States precluded German authorities from refusing to recognise Leonhard Matthias’ surname as determined and registered in Denmark. The CJEU held that discrepancy in surnames in the various German and Danish documents would have been liable to cause serious inconvenience, in particular doubts as to the child’s identity and the authenticity of the documents.
This case reflects the importance of a person’s forename and surname, which are a constituent element of his/her identity and of his/her private life, protected by Article 7 of the Charter. The CJEU clarified that the rules governing a person’s surname and forename are matters within the competence of the Member States, but must nevertheless be in compliance with EU law.
Furthermore, the CJEU delivered important decision in case Runevič-Vardyn (C-391/09), with the preliminary question referred by the Lithuanian court. It follows from the facts of the case that Mrs Malgožata Runevič-Vardyn is a Lithuanian national, belonging to the Polish minority in Lithuania. She was given the Polish forename ‘Małgorzata’ and her father’s surname ‘Runiewicz’. Her birth certificate issued in 1977 was drawn up in Cyrillic characters and it was only the birth certificate issued in 2003 that showed her forename and surname registered in their Lithuanian form, namely as ‘Malgožata Runevič’. In 2007, after living and working in Poland for some time, she married a Polish national, Mr Łukasz Paweł Wardyn. On the marriage certificate, the Lithuanian spelling rules were used without diacritical modifications. Her name is written as ‘Malgožata Runevič-Vardyn’ − indicating that only Lithuanian characters, which do not include the letter ‘W’, were used, including for the addition of her husband’s surname to her own surname. In 2007, Mrs Malgožata Runevič-Vardyn submitted a request to the Vilnius Civil Registry Division for her forename and surname to be changed to ‘Małgorzata Runiewicz-Wardyn’. Following the refusal of that request, the couple brought an action before the Vilnius District Court in Lithuania, which brought the case before the CJEU.
The CJEU held that Article 21 TFEU does not preclude national legislation allowing a refusal to amend surnames and forenames appearing on certificates of civil status, on condition that such a refusal is not liable to cause serious inconvenience to those concerned at administrative, professional and private levels, with refusal being necessary for the protection of the interests which the national rules are designed to secure and is proportionate to the legitimate aim pursued. The CJEU repeated that a person’s forename and surname are a constituent element of his identity and of his private life, the protection of which is enshrined in the Charter and in the European Convention for the Protection of Human Rights and Fundamental Freedoms and it did not exclude the possibility that refusal to make a change in spelling of the name might cause inconvenience for those concerned.
It derives from the case law of the CJEU that personal name falls under the right enshrined in Article 7 of the Charter, namely respect for private and family life. Thus, although the regulation of personal name is within the competence of the Member States, it must nevertheless be in compliance with EU law (case Grunkin-Paul, (C-353/06)). Moreover, in the circumstances when the name in a certain Member State cannot be written in the same way as in the Member State of the origin, Member States have to prevent the occurrence of serious inconvenience to Union citizens in another Member State in which the citizen wishes to use his/her name. Such serious inconveniences can restrict certain fundamental freedoms, such as for example freedom of establishment.
4. Conclusion
The Union citizenship is of key importance in the development of EU law, as it expands the scope of the applicability of the provisions on free movement of persons, and has an important influence also on other freedoms, e.g. freedom of establishment and freedom to provide services. From this perspective, we can claim that introduction of provisions on Union citizenship presents a new level in the development of this integration, maintained by the provisions of the Lisbon Treaty.
Active development of the concept of Union citizenship may be seen in several areas. Union citizenship also encompasses some political rights, e.g. voting rights in European Parliament elections. In addition, the Charter has been adopted. Enforcement of social rights increases the cross-border solidarity. The jurisprudence of the CJEU has been crucial in this development. However, we should keep in mind that new challenges and questions are arising over time, which should be regulated also at the EU level in the future (to mention some of them, e.g. the issue of selling national citizenships in some EU Member States, the issue of the acquisition of citizenship of asylum seekers). Therefore, dynamic changes in this area at all levels show that a further development of this concept can still be expected at the EU level in the future.
Acknowledgement
The article is based on the presentation given at the Academia Europaea 25th anniversary conference in Wrocław in September 2013 with the title ‘Union Citizenship and the Influence of the Court of Justice of the EU’.
Verica Trstenjak is a Professor for European Law at the Faculty of Law, University of Vienna. She is also the external scientific member at the Max Planck Institute for International, European and Regulatory Procedural Law in Luxembourg. Prior to taking up the position at the University of Vienna, she was Advocate General at the Court of Justice of the EU (2006-2012) and Judge at the General Court of the EC (2004–2006). Her main research interests focus on EU Law (European Constitutional Law and European Procedural Law), European Private Law, European Consumer Protection Law, European Intellectual Property Law, Fundamental Rights and Union Citizenship.
